Fenech v Police No. Scciv-02-493

FENECH v POLICE
[2002] SASC 159
Magistrates Appeal
GRAY J (ex tempore)
This is an appeal against sentence relating only to the monetary fine imposed.

Introduction

The Notice of Appeal was lodged on 4 April 2002, 48 days after the date specified by the rules. No point is taken by the Crown with respect to that matter. I extend the time for the filing of the Notice of Appeal to 4 April 2002.
The appellant was charged on complaint with six counts of offences related to various driving offences that took place on 15 February 2002.[1]
[1] The complaint alleged that Mr Fenech:
The matter was heard in the Magistrates Court at Adelaide on 1 February 2002. The appellant appeared unrepresented. He pleaded guilty to all 6 counts. The circumstances of the offending is set out in the affidavit of the prosecutor; where his submissions to the magistrate are as recorded as follows:
“Your Honour, at about 1.30am on Thursday 15 February 2001, the defendant left the Planet Night Club with two mates. The defendant was driving a blue Torana sedan, and the other two males were passengers, Roche and Chiro. Both Mr Roche and Mr Chiro stated that the defendant drove his vehicle from Pirie Street, along North Terrace and Payneham Road, turned right on to Nelson Street, Stepney and ‘crashed the car, hitting a light pole’. Mr Chiro further stated that the light pole fell across the road, and the defendant hit another small sign which was knocked out of the ground.
The defendant continued to drive to the corner of Magill Road and Portrush Road where he turned left, driving across the two lanes of Portrush Road and over the median strip in the middle of the road. The defendant continued on the other side of the road, onto the footpath and hit a sign at the BP service station. The defendant started the car again and was going to leave, but the gears wouldn’t work.
Mr Roche told police that he feared for his life, as the defendant ‘was driving really quickly and was not driving with due care and had been drinking’, and did not have control of the car. Mr Roche said that the defendant had been ‘drinking beers and a bit of marijuana, but that was all’. Mr Chiro said the defendant had been drinking a the Planet, but was not sure how much he had drunk.
Police on patrol were approached by a person making them aware of a light pole blocking both southbound lanes on Nelson Street Stepney. Police were then tasked to an accident at the BP service station. On arrival, Police saw a blue Torana sedan which had collided with a clothing bin. The engine of the car was still operating. Police also saw a large advertising sign which was considerably damaged. Police were approached by the defendant was identified as the driver of the vehicle. The defendant was slurring his speech, smelt strongly of alcohol, had bloodshot eyes, swayed slightly and laid on the boot of his car on several occasions while being questioned. Police conveyed the defendant to the Norwood Police Station where he submitted to a breath analysis, returning a positive result of 0.08. The defendant was then reported for the offences before the court.
The defendant stated that he had only drunk two medium strength beers that night, and that he had crashed because he was going too fast. He further stated that he was unable to turn left because of previous damage to his car which jammed the left wheel.
In relation to counts five and six on the complaint, police investigations revealed the car was unregistered and uninsured. The defendant stated that he knew his car was unregistered and ‘was going to wait until the last minute to get more done’. He also stated that ‘if he was a rich man he would pay it’.”
The prosecutor informed the court that the appellant had one prior conviction for driving unregistered and uninsured. He had been ordered by a magistrate to perform 16 hours of Community Service and disqualified from holding a drivers licence for seven days.
The magistrate gave no reasons when sentencing the appellant. He disqualified him from holding a drivers licence for 18 months and fined him $1000.
Issues on Appeal
On the hearing of the appeal, the appellant again appeared unrepresented. In a letter to the Court dated Monday 13^th 2002, with no month shown, the appellant submitted:
“I am appealing a decision that I thought was too much and having money problems at the moment I’m drawing on your strength to be lenient on me. I know it was a very silly thing to have done. At the time I had a flu and was a little rattled. I’m a non-smoker and I never drink too much since, and I’m not going to change.”
On the Notice of Appeal dated 4 April 2002, the appellant stated that he “misunderstood the charges put against him in the Magistrates Court and let his emotions get the better of him”. He further stated that for a first offence, he found the fine “pretty steep” and believed that he should have got a “much lesser amount”.
The appellant did challenge the allegations in the affidavit of the prosecutor. However, he said that certain statements that were attributed to him by his friends were incorrect. He acknowledged that he did not inform the magistrate of these matters. Those matters are not of any significance.
The conduct admitted represents a serious departure from proper conduct, both in regard to the consumption of alcohol and the driving that occurred. The driving involved considerable risks to other road users.
The appellant was unable to identify any error in the approach of the magistrate. The failure to give reasons is not in itself, a ground for setting aside an appeal. Section 9 of the Criminal Law (Sentencing) Act 1988 (SA) provides that a court must provide reasons. However, sub-section (2) provides that the validity of a sentence is not affected by non-compliance with the section.
The Notice of Appeal indicated that the appellant misunderstood the charges laid against him. I would consider that this misunderstanding, and other concerns held by the appellant, would have been ameliorated had the magistrate provided brief reasons for the sentence that he imposed. Although this would have been desirable, it does not, in the circumstances of this case, indicate any error. It cannot be said that the fine imposed was manifestly excessive, having regard to the conduct of the appellant and in particular, the nature of his driving.
It must also be borne in mind that the magistrate imposed the one penalty pursuant to s.18A of the Criminal Law (Sentencing) Act 1988 and that this was not the appellant’s first offence for driving an unregistered and uninsured motor vehicle.
In the course of submissions, the appellant has stated that he does not have the resources to pay the fine. The appellant indicated that he had prepared an application for relief in respect to the immediate payment of the fine. The appellant is aware that he can seek alternative arrangements with regard to the fine’s expiation. This process is set out in sections 64 and 70I of the Criminal Law (Sentencing) Act 1988 (SA). The sections provide that a “debtor” may apply to the magistrates registrar for an investigation of financial means. If the registrar finds that the debtor does not have sufficient means to satisfy the pecuniary sum without the debtor suffering hardship, the registrar may then remit the matter to the court for reconsideration. The court may then make appropriate orders including; remitting or reducing the fine or ordering community service. The debtor may also enter into a written arrangement in which he may pay the fine by instalments. The appellant can obtain appropriate relief with respect to any financial hardship.
In these circumstances, the appeal must be dismissed.
LIST OF CITATIONS LISTED AS THEY APPEAR IN JUDGMENT
1 The complaint alleged that Mr Fenech:
“…
1On 15 February 2002 at Trinity Gardens in the State of South Australia, the defendant drove a motor vehicle, on roads namely Port Rush Road and Magill Road, whilst he was so much under the influence of intoxicating liquor as to be incapable of exercising effective control of the said vehicle contrary to s.47 of the Road Traffic Act 1961.
2On 15 February 2002 at Trinity Gardens in the Sate of South Australia, the defendant drove a vehicle namely a motor vehicle, on roads namely Portrush Road and Magill Road, while there was present in his blood the prescribed concentration of alcohol as defined in s.47A of the Road Traffic Act 1961,contrary to s.47B of the Road Traffic Act 1961. It is further alleged that the concentration of alcohol was 0.80 grams in a hundred millilitres of blood.
3On 15 February 2002 at Trinity Gardens in the Sate of South Australia, the defendant drove a motor vehicle, on roads namely Port Rush Road and Magill Road, in contravention of a condition endorsed upon that licence pursuant to s.81A of the Motor Behicles Act 1959, namely that whilst driving the said motor vehicle there was present in his blood the prescribed concentration of alcohol as defined in s.81A(1a) of the Motor Vehicles Act 1959, contrary to s.81A of the Act.
4On 15 February 2002 at Trinity Gardens in the Sate of South Australia, the defendant drove a motor vehicle, on roads namely Nelson Street, Portrush Road and Magill Road without due care, contrary to s.45 of the Road Traffic Act 1961.
5On 15 February 2002 at Trinity Gardens in the Sate of South Australia, the defendant drove a motor vehicle, on roads namely Nelson Street, Portrush Road and Magill Road, the registration of such motor vehicle not then being in force under the provisions of Part II of the Motor Behicles Act 1959, contrary to s.9 of the Motor Vehicles Act 1959.
6.On 15 February 2002 at Trinity Gardens in the Sate of South Australia, the defendant drove a motor vehicle, on roads namely Nelson Street, Portrush Road, without there being in force in relation to the said motor vehicle a policy of insurance complying with part IV of the Motor Vehicles Act 1959.”

“…

1On 15 February 2002 at Trinity Gardens in the State of South Australia, the defendant drove a motor vehicle, on roads namely Port Rush Road and Magill Road, whilst he was so much under the influence of intoxicating liquor as to be incapable of exercising effective control of the said vehicle contrary to s.47 of the Road Traffic Act 1961.

2On 15 February 2002 at Trinity Gardens in the Sate of South Australia, the defendant drove a vehicle namely a motor vehicle, on roads namely Portrush Road and Magill Road, while there was present in his blood the prescribed concentration of alcohol as defined in s.47A of the Road Traffic Act 1961,contrary to s.47B of the Road Traffic Act 1961. It is further alleged that the concentration of alcohol was 0.80 grams in a hundred millilitres of blood.

3On 15 February 2002 at Trinity Gardens in the Sate of South Australia, the defendant drove a motor vehicle, on roads namely Port Rush Road and Magill Road, in contravention of a condition endorsed upon that licence pursuant to s.81A of the Motor Behicles Act 1959, namely that whilst driving the said motor vehicle there was present in his blood the prescribed concentration of alcohol as defined in s.81A(1a) of the Motor Vehicles Act 1959, contrary to s.81A of the Act.

4On 15 February 2002 at Trinity Gardens in the Sate of South Australia, the defendant drove a motor vehicle, on roads namely Nelson Street, Portrush Road and Magill Road without due care, contrary to s.45 of the Road Traffic Act 1961.

5On 15 February 2002 at Trinity Gardens in the Sate of South Australia, the defendant drove a motor vehicle, on roads namely Nelson Street, Portrush Road and Magill Road, the registration of such motor vehicle not then being in force under the provisions of Part II of the Motor Behicles Act 1959, contrary to s.9 of the Motor Vehicles Act 1959.

6On 15 February 2002 at Trinity Gardens in the Sate of South Australia, the defendant drove a motor vehicle, on roads namely Nelson Street, Portrush Road, without there being in force in relation to the said motor vehicle a policy of insurance complying with part IV of the Motor Vehicles Act 1959.”

[2002] SASC 159

13 May 2002